att alascom v orchitt s-12058 alaska supreme court opinion

8/3/2019 Att Alascom v Orchitt S-12058 Alaska Supreme Court Opinion

1/29

Notice: This opinion is subject to correction before publication in the PACIFICREPORTER.

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts , 303

K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail

[email protected] .

THE SUPREME COURT OF THE STATE OF ALASKA

AT&T ALASCOM and WARD )

NORTH AMERICA, INC., ) Supreme Court No. S-12058

)

Appellants, ) Superior Court No. 3AN-03-8276 CI

)

v. ) O P I N I O N

)

JOHN ORCHITT; and THE STATE ) No. 6139 - July 6, 2007OF ALASKA, DEPARTMENT OF )

LABOR AND WORKFORCE )

DEVELOPMENT, DIVISION OF )

WORKERS COMPENSATION, )

)

Appellees. )

)

Appeal from the Superior Court of the State of Alaska, Third

Judicial District, Anchorage, Philip R. Volland, Judge.

Appearances: Trena L. Heikes, Anchorage, for Appellants.

Steven J. Priddle, Law Office of Steven J. Priddle,

Anchorage, for Appellee John Orchitt. Larry A. McKinstry,

Assistant Attorney General, Anchorage, and David W.

Mrquez, Attorney General, Juneau, for Appellee Alaska

Workers Compensation Board.

Before: Fabe, Chief Justice, Matthews, Eastaugh, Bryner,

and Carpeneti, Justices.

EASTAUGH, Justice.


2/29

We refer to AT&T Alascom and its insurer, Ward North America, Inc.,1

collectively as AT&T.

A waveguide is part of a transmission system for microwaves. It guides2

radio frequency waves along the path they take from one point to another. The

(continued...)

6139-2-

I. INTRODUCTION

John Orchitt was exposed to radio frequency radiation in an accident while

he worked for AT&T Alascom. After a contested hearing, the Alaska Workers

Compensation Board awarded him temporary total disability and medical benefits.

AT&T unsuccessfully appealed to the superior court, alleging that procedural

irregularities deprived it of due process and that the boards decision was not supported

by competent scientific evidence. Because substantial evidence supports the boards

findings and because the boards procedural decisions did not deprive AT&T of due

process, we affirm the superior courts judgment that affirmed the boards ruling.

II. FACTS AND PROCEEDINGS

John Orchitt applied for workers compensation benefits on September 21,

1999, claiming he had suffered head, brain, and upper body injuries as a result of

overexposure to radio frequency radiation on November 16, 1998. AT&T Alascom

controverted his claim on October 14, 1999. We derive the facts in this case from the

workers compensation file and hearing record.

Orchitt began working for AT&T Alascom in 1991, after serving in the Air

Force for more than twenty years. He worked primarily as a telecommunications1

equipment installer technician.

On November 16, 1998, Orchitt and his coworker, Tim Sorenson, were

installing a new computer-operated switching system in the Eagle River Earth Station.

They had to replumb sections of waveguide as part of the installation process. To2


3/29

(...continued)2

waveguide in this case consisted of rigid, hollow, rectangular pieces of metal with

flanges on both ends. Segments of waveguide were connected at their flanges by bolts.

A hertz is a unit of measurement. It equals the number of cycles of a wave3

(continued...)

6139-3-

prevent them from being exposed to radio frequency radiation, the amplifier associated

with the waveguide they were working on was supposed to be turned off.

After a technician from the Eagle River Earth Station turned off an amplifier

in accordance with the specifications provided, Orchitt separated two segments of the

waveguide. He estimated that his head was from nine to fifteen inches away from the

waveguides point of separation. While Orchitt was working on the waveguide,

Sorenson walked around the room with a meter and probe to detect any radio frequency

radiation. The meter Sorenson used had three scales. A full-scale reading on the highest

scale could indicate the presence of three times the American National Standards Institute

(ANSI) limit for whole body exposure. Sorenson calibrated the meter outside the room.After he reentered the room, the meter pegged, indicating that there was radio

frequency radiation in the room. Pegged means the meter registered at its highest

level. Sorenson changed the scale while he was in the room, but the meter continued to

peg. Realizing there was a problem, Orchitt clamped the two pieces of the waveguide

together to stop the radiation from leaking any further. Orchitt and Sorenson then

discovered that the amplifier connected to the waveguide had not been turned off because

the engineer had misidentified which amplifier was associated with the waveguide they

were working on. Orchitt contacted the engineer and tried to contact his supervisor to

tell them about the accident; his supervisor was not in, so he contacted the manager

instead. The radio frequency radiation Orchitt was exposed to had a frequency of six

gigahertz; the amplifier transmitting radio frequency radiation through the waveguide3


4/29

(...continued)3

that pass through a given point in a one-second period. Six gigahertz means that six

billion cycles of the wave pass through a point in one second.

6139-4-

was operating at approximately ninety watts. Orchitt estimated that he was exposed to

radio frequency radiation for three to six minutes.

Sorenson testified that Orchitt said he felt a heat flash. Sorenson did not

observe any redness on Orchitts face at that time. Orchitt filed a report of injury on

December 14, indicating that his head and eyes had been exposed to radiation. He

continued to work as an installer for AT&T for about three months following the

accident; some of his work was overtime.

Radio frequency radiation is non-ionizing radiation, unlike the radiation

from x-rays. The primary biological effect of radio frequency radiation is heating.

Ionizing radiation, in contrast, has sufficient energy to break molecular bonds within thebody. Radio frequency radiation encompasses a number of frequencies, including the

frequencies for television, radio broadcasting, and telecommunications. The term

microwave radiation refers to a region within the radio frequency radiation band. The

frequency of microwave radiation is usually above one gigahertz, or one billion cycles

per second. Different frequencies of radio frequency radiation have differing abilities to

penetrate tissue. Frequency and wavelength are related, so that longer waves have lower

frequencies. Longer waves have greater penetration. Six gigahertz waves penetrate to

approximately eight millimeters. When the waves reach this depth, they have lost

approximately eighty-five percent of their energy.

Safety standards for exposure to radio frequency radiation vary according

to the frequency involved. There are two ways to calculate exposure to radio frequency

radiation. One way is to calculate the actual exposure level in milliwatts per square


5/29

The American National Standards Institute (ANSI) also established4

exposure guidelines for radio frequency radiation. The boards engineering experttestified in his deposition that for the frequency Orchitt was exposed to, the ANSI

standard is twice the FCC standard.

A transient ischemic attack involves a small clot in the blood vessels of the5

brain that dissolves in a few hours.

6139-5-

centimeter; the second way measures tissue absorption of radio frequency radiation in

watts per kilogram. The Federal Communications Commission (FCC) has set standards

both for general public exposure and for occupational exposure. Two experts who

testified in Orchitts case and the board used the FCC occupational standard for actual

exposure to evaluate whether he was overexposed to radio frequency radiation. The FCC

occupational standard for actual exposure at six gigahertz is five milliwatts per square

centimeter over a six-minute interval for whole body exposure.4

Orchitts first medical visit after the exposure was an appointment with his

family clinic on November 30, 1998. Orchitt was concerned about headache and eye

pain after the exposure but thought he had a sinus infection. The doctor he saw referredOrchitt to an optometrist for follow up. The optometrist found nothing wrong but

referred Orchitt to a neurologist to rule out a stroke. The neurologist ordered an MRI;

it showed tiny areas of hyperintensity in the frontal lobes, which the neurologist

concluded had doubtful clinical significance. The neurologist prescribed medication

for Orchitts headaches. Dr. David Swanson, an ophthalmologist, evaluated Orchitts

eyes in February 1999 and found no abnormality except decreased tear production.

Orchitt went to Dr. Stanley Smith, his family physician, in March 1999 with complaints

about mental slowing. Dr. Smith was concerned that Orchitt had suffered a stroke or

transient ischemic attack.5


6/29

6139-6-

In March 1999 Orchitts neurologist referred him to Dr. Marvin Ziskin, a

professor of radiology and medical physics at Temple University in Philadelphia. Dr.

Ziskin did not examine Orchitt in person, but, using information Orchitt provided him,

made calculations related to the amount of radio frequency radiation for Orchitts

exposure. Based on those calculations, Dr. Ziskin concluded that Orchitt was

overexposed to radio frequency radiation.

Dr. Ziskins conclusions differed from those of Kimberly Kantner, AT&Ts

radiation safety officer. Following the injury report, Kantner had calculated Orchitts

probable exposure level, using a mathematical model. Based on these calculations, she

estimated a range of radiation exposure levels, with the high end being slightly in excessof the FCC maximum permissible limit. But because of the physical symptoms he

described, she concluded that Orchitt had not been overexposed.

Orchitt consulted Dr. Paul Craig, a neuropsychologist, in August 1999. Dr.

Craigs evaluation showed a relatively normal neurocognitive profile, although he noted

a very mild neurocognitive disorder and a significant level of depression. Dr.

Craigs report stated that he did not have the necessary expertise to determine whether

there was any link between Orchitts symptoms and his radio frequency radiation

exposure.

Orchitt began treatment at the Brain Injury Association of Alaska in

October 1999. His main care provider there was Dr. Debra Russell; she has a Ph.D. in

psychology, but is not a licensed clinical psychologist. Dr. Russell conducted some

testing on Orchitt and issued an opinion letter to the claims adjuster, stating that Orchitt

was suffering from a cognitive disorder as a result of his radio frequency radiation

exposure. She provided Orchitt with ongoing rehabilitation therapy to address his

continuing complaints of mental slowing and mood changes.


7/29

An MRI, in contrast, looks at structural changes.6

6139-7-

Dr. Russell also referred Orchitt to Dr. Daniel Amen, a psychiatrist, for a

single photon emission computed tomography (SPECT) scan. A SPECT scan measures

blood flow in the brain, looking at functional, rather than structural, changes. Dr. Amen6

performed the SPECT scan in November 2000 and concluded that Orchitt had some

decreased brain activity as well as depression. Dr. Amen attributed the neurological

impairments he observed to radio frequency radiation exposure based on the history

Orchitt gave and a discussion Dr. Amen had with Dr. Russell.

AT&T retained a panel of doctors to evaluate Orchitt. Dr. Patricia Sparks,

a specialist in occupational and environmental medicine and internal medicine, examined

Orchitt in September 2000. Dr. Sparks concluded that while Orchitt may have had somewarming of his skin due to the radio frequency radiation exposure, the symptoms he

described were not consistent with the known health effects of radio frequency radiation

exposure. She believed that Orchitt was suffering from depression that was not directly

related to the radio frequency radiation exposure.

Dr. David Coppel, a Washington neuropsychologist, also evaluated Orchitt

for AT&T in September 2000. He did some of the same testing Dr. Craig had done in

1999. The testing showed some impairments in visual processing, but Dr. Coppel did not

believe that they could be related to the radio frequency radiation exposure. He instead

believed that depression was the most likely cause of Orchitts difficulties, but he did not

offer an opinion as to the origin of the depression.

Dr. Douglas Robinson, a Seattle psychiatrist, conducted a psychiatric

evaluation of Orchitt for AT&T, also in September 2000. He concluded that the late

onset of symptoms reported by Orchitt indicated that the radio frequency radiation

exposure was an unlikely cause of Orchitts difficulties. His opinion stated that the most


8/29

6139-8-

likely explanation for Orchitts complaints was depression and somatization due to stress.

He identified several stressors that could have contributed to the depression.

Because of the complex medical issues, the board ordered a second

independent medical evaluation (SIME) in April 2000. The board selected Dr. Charles

Sutton, a neurosurgeon, to conduct the evaluation. Dr. Sutton spoke with Orchitt by

phone and was provided extensive medical records. Dr. Sutton asked the board to hire

an engineer as a consultant to give him a better idea of how much radio frequency

radiation Orchitt had been exposed to.

At Dr. Suttons request, the board hired Dr. Arthur Guy, a professor

emeritus of electrical engineering at the University of Washington. Dr. Guy had doneextensive work in the area of the biological effects of radio frequency radiation. He

conducted three computer models of the accident. The first was based on information

received from AT&T. After the report based on the first model concluded that there was

no overexposure, Orchitt wrote to Dr. Guy, describing the incident. Dr. Guy then ran a

second model, using the information that Orchitt provided. This scenario also showed

that Orchitt had not been overexposed to radio frequency radiation. Orchitt again

contacted Dr. Guy and supplied other information. Dr. Guy then made a third set of

calculations. Because there was conflicting evidence about the placement of possible

reflectors, Dr. Guy placed the reflectors in what he considered to be the worst possible

placement in terms of radiation exposure. The third scenario produced an exposure that

was approximately nine and a half percent over the FCC exposure limits, but not enough

to cause biological effects. After receiving Dr. Guys reports, Dr. Sutton concluded that

Orchitt had not suffered any injury related to the radio frequency radiation exposure

beyond dermal heating, which Orchitt experienced as a sensation akin to sunburn.


9/29

8 Alaska Administrative Code (AAC) 45.120(f) (2004).7

6139-9-

Orchitts board hearing was scheduled to begin on April 8, 2003. The

parties attended a pre-hearing conference on March 10, 2003. Orchitt stated at that

conference that he would be submitting two new expert reports, one from Dr. Russell,

and one from a newly identified expert, Dr. James May, a neuropsychologist. Dr. Mays

report concluded that Orchitt suffered from organic personality syndrome and mood

disorder due to general medical conditions and that these conditions related to his

exposure to radio frequency radiation. In spite of AT&Ts objection, the board refused

to exclude the reports because the board reasoned that they were filed within the twenty-

day deadline for filing evidence.7

A short time later, AT&T requested a continuance so that it could get afollow-up employers medical examination (EME) of Orchitt in response to the new

expert reports. AT&T later withdrew that request with the understanding that Orchitt

would attend an EME before the hearing. AT&T scheduled the EME for April 1-3, 2003

in Seattle; however, in a March 19 letter from his attorney, Orchitt indicated that he

would not be able to attend the EME as scheduled. AT&T requested a board hearing to

address several issues, including the EME and AT&Ts renewed request for a

continuance.

At a board hearing on April 1, Orchitt said he would submit that day

another new expert report from another new expert, Dr. Jeff Keene, a neuro-

ophthalmologist. Dr. Keene diagnosed several vision disorders in Orchitt and made

recommendations for treatment. AT&T told the board that it had not yet received all the

information it had requested from Dr. May and that Dr. May had not appeared at his

scheduled deposition. AT&T asked the board to either strike Dr. Mays report or,

alternatively, grant a continuance to allow AT&T to (1) demand that Dr. May release his


10/29

6139-10-

report and (2) compel Orchitt to attend a follow-up EME. The board denied AT&Ts

request to strike Dr. Mays report, decided that it would be unreasonable to require

Orchitt to attend a follow-up EME so close to the April 8 main hearing, and reserved

ruling on AT&Ts continuance request.

At the April 8 hearing AT&T renewed its request for a continuance for the

purpose of developing expert testimony to rebut what it called Dr. Mays alleged

report. The board denied the request but told AT&Ts attorney that she could renew the

request or make objections the following day.

At the time of the hearing Dr. Keene was out of state and unavailable to

testify. The board admitted Dr. Keenes report and said it would hold the record openfor rebuttal or cross-examination. Although the board had admitted Dr. Mays report into

evidence, and although Dr. May was available, Orchitt did not present him as a witness.

AT&T objected to a board ruling that if AT&T wanted to cross-examine Dr. May, it

would have to do so during the time allotted for its case-in-chief. AT&Ts counsel said

that she wanted to think about whether she wanted to take the time from her case-in-chief

to cross-examine Dr. May. AT&T never thereafter renewed its request to cross-examine

Dr. May.

At the end of the hearing AT&T objected to the denial of its continuance

request and also stated that it would waive cross-examination of Drs. May and Keene.

The board chair told AT&T that the board would not leave the record open for a follow-

up EME and that the board was closing the evidentiary record at that time. AT&T did

not object to closing the record.

The boards post-hearing decision and order found that Orchitt had been

exposed to excessive amounts of radio frequency radiation. It found that the models of

Dr. Guy and Kimberly Kantner did not correspond with the known facts in the case.


11/29

Handley v. State, Dept of Revenue, 838 P.2d 1231, 1233 (Alaska 1992).8

Kelly v. Zamarello, 486 P.2d 906, 916 (Alaska 1971).9

6139-11-

In finding that Orchitt had been overexposed, it relied on the testimony of Orchitt,

Sorenson, and Dr. Ziskin. The board decided that Orchitts mental deficits and

depression were the result of the overexposure. Besides testimony from medical experts,

the board relied on testimony from Orchitts coworkers that Orchitt had a red face

following the accident and that his mental and cognitive states changed after the accident.

It also decided that Orchitts predominant cause of disability was his depression and

awarded him temporary total disability (TTD) benefits through April 21, 2001, the date

on which Orchitt applied for unemployment benefits and certified that he was available

for work. One member of the panel dissented, concluding that Orchitts exposure caused

only dermal symptoms that readily healed and that AT&T had paid all benefits dueOrchitt.

AT&T appealed to the superior court, contending that the board violated

AT&Ts due process rights and that the decision was not supported by substantial

evidence. AT&T alleged for the first time in the superior court that the board chair was

biased. The superior court affirmed the boards decision, finding that the decision was

supported by substantial evidence and that AT&Ts due process rights had not been

violated. AT&T appeals.

III. DISCUSSION

A. Standard of Review

We directly review the boards ruling. Whether the board denied AT&T8

due process is a question of law that does not involve agency expertise; we substitute our

judgment and exercise independent review of questions of law. We review the boards9


12/29

DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000).10

Id.11

AS 23.30.120;Bradbury v. Chugach Elec. Assn , 71 P.3d 901, 905 (Alaska12

2003).

Bradbury, 71 P.3d at 905 (quoting Temple v. Denali Princess Lodge, 2113

P.3d 813, 815-16 (Alaska 2001)).

Id.14

Id. at 906.15

Id.16

6139-12-

factual findings under the substantial evidence standard. Substantial evidence is such10

evidence as a reasonable mind might accept as adequate to support a conclusion.11

B. Substantial Evidence Supportsthe Boards Decision.

The Alaska Workers Compensation Act creates a presumption that an

employees claims are compensable. Applying this presumption involves a three-step12

analysis. First, to trigger the compensability presumption the employee must establish13

a link between his injury and his employment. In this case, the board found that Orchitt14

had produced sufficient evidence to establish a link between Orchitts employment and

his disability. AT&T does not appear to contest this part of the boards findings.

Second, once the employee establishes the presumption of compensability,the employer may rebut the presumption with substantial evidence. In Orchitts case,15

the board found that AT&T had rebutted the presumption. Orchitt does not challenge the

boards finding that AT&T rebutted the presumption.

Third, if an employer rebuts the presumption, the burden shifts to the

employee to prove his claim by a preponderance of the evidence. Here the board found16

that Orchitt had provided sufficient evidence to establish his claim. AT&T challenges


13/29

Commercial Union Cos. v. Smallwood, 550 P.2d 1261, 1267 (Alaska 1976).17

Veco, Inc. v. Wolfer, 693 P.2d 865, 871 (Alaska 1985).18

6139-13-

the boards conclusion that Orchitt proved his claim by a preponderance of the evidence,

raising several issues about whether substantial evidence supports the boards decision.

1. Overexposure to radio frequency radiation

AT&T first claims that the boards finding that Orchitt was overexposed to

radio frequency radiation is not supported by substantial evidence because the board

rejected the testimony of the boards engineering expert and AT&Ts radiation expert

and relied instead on the lay testimony of Orchitt and his coworker, as well as its own

common sense. AT&T asserts that Dr. Ziskin, a medical doctor who also calculated

Orchitts exposure, retracted his initial opinion that Orchitt had been overexposed. It

argues that because the issue of overexposure to radio frequency radiation is highlytechnical, any finding that Orchitt was overexposed must be supported by expert

scientific testimony. It alleges that only Kimberly Kantner and Dr. Guy had adequate

expertise to properly evaluate the level of Orchitts exposure.

In some workers compensation cases expert medical testimony is necessary

to demonstrate a relationship between the claimants employment and his disability.17

Whether expert testimony is necessary depends on the probative value of the available

lay evidence and the complexity of the medical facts involved. AT&T relies on18

Commercial Union Cos. v. Smallwoodin arguing that the board erred in its finding of

overexposure. But the board based its finding that Orchitt was overexposed to radiation

not just on lay testimony and common sense; it also relied on Dr. Ziskins expert opinion.

Although AT&T contends that Dr. Ziskin retracted his opinion, the record does not

support this assertion. In his April 16, 1999 letter, he did not, as AT&T argues, say that


14/29

6139-14-

it was unlikely that Orchitt sustained any significant overexposure. This letter contains

no reference at all to exposure level. Nor did Dr. Ziskin change his mind in his

deposition. Dr. Ziskin there testified that he still had concerns about whether Dr. Guys

models adequately accounted for specular reflection in determining how quickly the

radiation would dissipate once it left the waveguide. AT&T points to the following

excerpts from Dr. Ziskins deposition testimony to support its argument:

Q: Okay. All right. You havent done any calculations or

analysis yourself, have you, to the degree Dr. Guy has?

A: About what? I mean, I do make calculations of

radiation exposures and so on from antennas and

things like that.Q: No. I mean in this case, Doctor. Im sorry.

A: Oh, in this particular case?

Q: Yeah.

A: The calculations that I made were very

Q: Rough?

A: limited. I took the total power that was coming

through the waveguide, and I divided it by the area tocome up with what was the average power density

within the waveguide, which would be at the starting

point.

Q: Right. And it would be it would lose power as it

moved away, right?

A: Well, within the waveguide, for the most part, the

power will stay the same.

Q: Within the waveguide, but once it

A: Within the waveguide. But once it leaves the

waveguide, it gets attenuated, yeah. It depends upon


15/29

6139-15-

the nature of the way it leaves how rapidly it

attenuates.

Q: Okay.

A: And most of the modeling was done on the idea of the

inverse square law; but with specular reflection, that

would not necessarily be true.

Q: And specular reflection you deal with in ultrasound,

right?

A: Thats correct.

. . . .

Q: . . . . Now, as to the differences between the sort[] of

doctor[] that you are as compared to Dr. Guy, can youexplain the differences for so that we can understand

the kind of testimonies that we can expect that you

would be able to testify to accurately as opposed to the

type of testimony Dr. Guy would be able to testify to

accurately?

A: Well, there is a great deal of overlap. However, Ill

I think he would defer to me when it comes to medical

judgment and biology. And unless there was

something very specific, I will always defer to himwhen it comes to the physical engineering side of

things. And I think the same thing is true with its

possible that, because he has done some biological

research, that there could be something that I would

not be correct on and he would maybe correct me

when it comes to even biology or even medicine, but

in general, he would defer to my opinion when it

comes to medical aspects.

We do not believe that Dr. Ziskins testimony that he would defer to Dr.

Guys opinions with respect to physical engineering unless there was something very

specific indicates that he retracted or otherwise abandoned his opinion that Orchitt was

overexposed. Dr. Ziskin identified the specific issue of specular reflection as an area


16/29

6139-16-

of possible disagreement with Dr. Guy. In his deposition, Dr. Ziskin reiterated his belief

that Dr. Guys model had not taken specular reflection into account.

A: Where I have a question is in the initial assumptions of

what was the exposure ahead of time, what went into

that model. And thats why I said I wanted to look to

see what was the incident power density that he felt

was started to expose the head with. And here is

where I have a little different point of view. It has to

do with reflections off of the flange. Because I have a

background in ultrasound for diagnosis where we look

at reflections, thats the whole diagnosis concerned

with, Im aware that you can have pretty large

reflections off of structures that are relatively strong

compared to just the scatter and the back scatter thatyou would have otherwise. And see, I havent seen the

actual setup.

But it would be possible that if the two flanges that

had been that the waveguide segments that had been

separated had overlapped and there was strong

reflections coming off of one of the flanges, that that

reflection could actually be quite high and might not

be measured in the model the modeling that Dr. Guy

had used. Thats sort of a rather important pointbecause that would establish what that initial

maximum exposure would be.

. . . .

Q: And Dr. Guy did take that into account in the third

report. Do you see that?

A: Well, looking at it, though, its not clear to me whether

or not it actually addressed what I call specular

reflections, the type of reflections Im talking about.It looked more of the defraction type of reflection,

which is certainly true, but I dont know whether or

not the model actually takes into account the specular

reflections.


17/29

Yahara v. Constr. & Rigging, Inc., 851 P.2d 69, 72 (Alaska 1993) (citing19

Delaney v. Alaska Airlines, 693 P.2d 859, 863-65 (Alaska 1985)).

Beauchamp v. Employers Liab. Assurance Corp., 477 P.2d 993, 996-9720

(Alaska 1970).

6139-17-

. . . .

A: The only thing, Im not sure whether that model takes

into account specular reflections or not. I just dont

know for sure. I would have to ask Dr. Guy.

Dr. Ziskins report and testimony provide substantial scientific evidence to

support the boards finding. AT&T does not argue that Dr. Ziskin was not qualified to

give an opinion about overexposure. Moreover, the board was free to credit the

testimony of Dr. Ziskin over that of Dr. Guy and Kimberly Kantner. [I]f the Board is

faced with two or more conflicting medical opinions each of which constitutes

substantial evidence and elects to rely upon one opinion rather than the other, we will

affirm the Boards decision. This is particularly so if the board believed that, based19

on Orchitts description of the separation between the segments of the waveguide and his

distance from the flange, specular reflection had occurred, and if it found that Dr.

Ziskins opinion more accurately matched how the accident happened than Dr. Guys.

We therefore find no merit in AT&Ts contention that the boards finding was not

supported by adequate scientific evidence.

Furthermore, inBeauchamp v. Employers Liability Assurance Corp., we

held that the board could permissibly combine uncontradicted lay testimony with

uncertain medical testimony to support a conclusion that a workers injury was work

related. Here, the board did not err in relying on the lay testimony of Orchitts20

coworkers in combination with the medical evidence in determining that Orchitt had

suffered a work-related injury.


18/29

State v. Coon, 974 P.2d 386 (Alaska 1999).21

Id. at395 (citingDaubert v. Merrill Dow Pharm., Inc. , 509 U.S. 579, 593-22

94 (1993)).

AT&T objected to the admission of Dr. Russells March 4, 2003 report on23

other grounds.

Wagner v. Stuckagain Heights, 926 P.2d 456, 459 (Alaska 1996).24

6139-18-

2. Medical evidence

AT&T also argues that the boards findings that Orchitt suffered a work-

related injury and that Orchitts mental deficits were related to the radio frequency

radiation are based on incompetent medical evidence. It contends that the evidence

presented by Drs. Russell and Amen does not meet the standards articulated in State v.

Coon to test the reliability of scientific testimony. Thus, it argues that the SPECT scan21

that was the foundation of Dr. Amens diagnosis of brain damage does not satisfy Coon

and that because Dr. Russell was not a licensed clinical psychologist, her opinions were

not sufficiently reliable to provide a basis for the boards ruling.

In State v. Coon we set out factors for trial courts to use in determiningwhether expert scientific evidence is sufficiently reliable to be admitted into evidence.22

AT&T did not object before the board to the admission of either Dr. Russells or Dr.

Amens reports or testimony on this basis, nor did it make an argument about the23

applicability of the Coon standard to workers compensation cases in its superior court

appeal. Because AT&T first raises the issue before us, it has waived the issue.24

AT&T did argue before the board, as it argues here, that Dr. Russells

testimony should not be credited because she was not licensed as a clinical psychologist.

But AT&T does not dispute that Dr. Russell has a doctorate degree in psychology and

is certified as a rehabilitation specialist. These credentials provide her with some


19/29

AS 23.30.122.25

The board did not explicitly identify which experts it relied on in making26

its findings.

AS 23.30.122.27

Bradbury v. Chugach Elec. Assn , 71 P.3d 901, 909 (Alaska 2003) (quoting28

Childs v. Copper Valley Elec. Assn, 860 P.2d 1184, 1189 (Alaska 1993)).

6139-19-

expertise. The board did not make a specific finding about Dr. Russells credibility or

the weight it accorded her testimony; nonetheless, the board acted within its discretion

in rejecting AT&Ts challenge to her expertise and in admitting her testimony.25

AT&T also argues that the board must have relied on the opinions of Drs.

Russell, May, and Keene in finding that Orchitts injury caused his impairments. It26

argues that none of these experts had sufficient expertise in radio frequency radiation

exposure to be able to connect Orchitts injury and his medical condition.

AT&Ts argument overlooks the opinions of Drs. Ziskin and Smith. Dr.

Ziskin stated in his letter to the claims adjuster that neurological problems would be

expected to result from Orchitts overexposure to radio frequency radiation. As we havealready noted, AT&T is incorrect in asserting that Dr. Ziskin withdrew his opinion about

Orchitts overexposure. In addition, Dr. Smith wrote that he believed that Orchitt

sustained neurocognitive deficits related to radio frequency radiation. AT&T does not

argue that the medical opinions of Drs. Smith or Ziskin are suspect. The board has the

sole power to determine witness credibility and assign weight to medical testimony.27

When medical experts disagree about the cause of an employees injury, we have held

that as a general rule it is undeniably the province of the Board and not this court to

decide who to believe and who to distrust. Substantial medical evidence in the28


20/29

6139-20-

record supports the boards determination that Orchitt is entitled to medical and TTD

benefits.

C. The Board Did Not Deny AT&T Due Process.

AT&T argues that a series of board procedural decisions violated its due

process rights. It contends that the violations occurred when the board: (1) denied

AT&Ts right to cross-examine the employees experts; (2) admitted Orchitts last-

minute expert reports without giving AT&T an opportunity to rebut the evidence through

an EME; (3) denied AT&Ts request for a continuance; and (4) violated its right to an

impartial trier of fact when the hearing officer failed to disclose that he was also an

officer of the AFL-CIO. Because we conclude that the board committed no proceduralerrors in these regards, it did not deny AT&T due process.

1. Cross-examination

AT&T argues that the board denied its right to cross-examine two of

Orchitts experts, Drs. May and Keene. Dr. Keene was not available to testify at the

hearing because he was out of state. Orchitt did not present Dr. May for cross-

examination because Orchitt ran out of time in presenting his case. The board gave

AT&T the option of cross-examining Dr. May during the time allotted for its case-in-

chief. AT&T objected to this option; in response, the board chair said, If you want to

cross-examine him, you can cross-examine him on your time tomorrow. AT&Ts

attorney indicated that she wanted to think about it; she also indicated that she wanted

the record to close the next day and did not want to leave the record open for depositions.

The next day, AT&Ts attorney did not ask to cross-examine Dr. May, and at the end of

the hearing, AT&Ts counsel explicitly stated on the record that AT&T was waiving its

right to cross-examine Drs. May and Keene.


21/29

Smallwood, 550 P.2d at 1266-67.29

Id. at 1266.30

The board procedure for requesting cross-examination of the author of a31

medical report is set out in 8 AAC 45.052 (2004).

8 AAC 45.054(a) (2004).32

8 AAC 45.054(c) (2004).33

6139-21-

AT&T contends on appeal that this was not a true waiver because the

manner in which the board proposed to permit cross-examination was constitutionally

defective. It argues that the boards admission of Dr. Keenes report after it had been

informed that Dr. Keene would not be available for cross-examination at the hearing

violated Commercial Union Cos. v. Smallwood. In that case, we recognized that a party29

has the right to cross-examine a witness without bearing the cost of calling that witness

herself. Thus, when a party files a medical report with the board, that party has the30

responsibility of producing the reports author at a hearing or deposition to give the

opposing party an opportunity to cross-examine the author if cross-examination is

requested. Workers compensation regulations require the party seeking to introduce

31

a witnesss testimony by deposition to pay the initial cost of the deposition. If a32

subpoena is required, the party requesting the subpoena must bear that cost as well.33

The boards rulings here appear contrary to Smallwoodbecause the board admitted Dr.

Keenes and Dr. Mays reports and then would have required AT&T to conduct

depositions of Orchitts experts in order to cross-examine them.

But AT&T did not object on the record to the method of cross-examination

proposed by the board here, namely deposition testimony. Instead, it simply stated that

it waived its right to cross-examine Drs. May and Keene. Because AT&T did not qualify


22/29

Williams v. Abood, 53 P.3d 134, 148 (Alaska 2002) ([F]ailure to make the34

appropriate objection during the hearing waives the right to appeal procedural errors.).

See Rose v. Commercial Fisheries Entry Commn, 647 P.2d 154, 16135

(Alaska 1982).

6139-22-

or limit its waiver of its right of cross-examination, it cannot now claim that the board

erred in denying its right to cross-examine Drs. May and Keene.34

2. The boards refusal to require an EME before the hearing

We review an agencys application of a statute or regulation to a particular

factual situation for abuse of discretion or arbitrariness. The board did not abuse its35

discretion by denying AT&Ts March 2003 pre-hearing request for a follow-up EME.

Alaska Statute 23.30.095(e) provides that a medical examination requested by the

employer not less than 14 days after injury, and every 60 days thereafter, shall be

presumed to be reasonable. AT&T made its request for a follow-up EME within the

time limits set out in that statute. Before making its March 2003 request, AT&T madeits last request in September 2000 that Orchitt attend a medical examination. Due to

Orchitts new expert reports, AT&T scheduled a follow-up EME in early April 2003.

The board decided that the statutory presumption for an EME was overcome because

AT&T requested the follow-up EME too close to the April 8, 2003 hearing date. At the

April 1 hearing, the board gave AT&T the option of obtaining a follow-up EME after the

hearing. The board later ruled that after the hearing ended it would not leave the record

open for AT&T to submit a follow-up EME.

Although it may appear that the board reversed course, AT&T told the

board on April 8 that it wanted the record to close the following day, April 9. Because

AT&T affirmatively asked that the record close on April 9, there was no reason for the

board to leave the record open for AT&T to submit a follow-up EME. We cannot


23/29

Nothing in the statute requires that an EME occur before a hearing. AS36

23.30.095(e) provides, in part, The employee shall, after an injury, at reasonable times

during the continuance of the disability . . . submit to an examination by a physician . . .

of the employers choice . . . .

Cf. Adamson v. Univ. of Alaska, 819 P.2d 886, 889-90 (Alaska 1991).37

6139-23-

determine whether AT&T could have been harmed by the boards action in denying

AT&Ts request for a pre-hearing follow-up EME, because AT&T apparently took no

action after the hearing to obtain a follow-up EME. The board had given AT&T an

opportunity to obtain a post-hearing EME. Nothing prevented AT&T from scheduling

an EME after the hearing and petitioning the board to reopen the record to consider it.36

If the board had then refused to reopen the record to consider the EME, the EME would

have functioned like an offer of proof available to any appellate tribunal determining

whether AT&T was harmed by the boards failure to require an EME before the hearing

or its refusal to consider any evidence produced by the EME. And if the board had37

reopened the record and considered the EME evidence, any possible error in failing torequire a pre-hearing EME would have been harmless.

Moreover, even though AT&T makes much of the boards denial of a pre-

hearing follow-up EME, it does not explain why other measures short of an EME would

have been unsuccessful in rebutting Orchitts last-minute experts. AT&T does not

explain, for example, why it could not have called or why it did not call Dr. Swanson, the

ophthalmologist who examined Orchitt and found nothing wrong, as a witness to rebut

Dr. Keenes report. It also does not explain why cross-examination without an EME

might not have been effective. AT&T also does not explain why it needed an actual

examination of Orchitt when it could have used the raw data generated by Dr. Mays tests


24/29

AS 23.30.095(e). AT&T also alleged that it had difficulty obtaining the raw38

data from Dr. Mays office, but the board indicated that it would consider this issue indeciding whether or not to grant a continuance.

Adamson, 819 P.2d at 889-90.39

8 AAC 45.074(b) (2004).40

6139-24-

of Orchitt. Furthermore, Dr. Robinson, one of AT&Ts experts, testified at the hearing38

that he had read Dr. Mays report, and he offered general testimony tending to discount

neuropsychological testing.

Finally, AT&T did not object at the end of the hearing to closing the record.

It did not ask to present rebuttal evidence in any form other than a follow-up EME, nor

did it make an offer of proof about what evidence it might have offered in rebuttal. A

partys failure to make an offer of proof acts as a waiver of any claim of error regarding

the exclusion of unspecified evidence.39

3. The boards denial of AT&Ts request for a continuance

Soon after Orchitt presented his new expert reports in the month before thehearing, AT&T requested a continuance of its expert medical testimony. AT&Ts

continuance requests were all related to obtaining a follow-up EME to develop rebuttal

evidence in response to Orchitts experts, Dr. May and, later, Dr. Keene. AT&T made

its requests in reliance on 8 AAC 45.074.

The regulatory standard for granting a continuance is good cause. AT&T40

argued to the board that there was good cause for a continuance under 8 AAC

45.074(b)(1)(I) and 8 AAC 45.074(b)(1)(L), which state that good cause for a

continuance exists when

(I) the board determines that despite a partys due

diligence in completing discovery before requesting a hearing

and despite a partys good faith belief that the party was fully


25/29

J.L. Hodges v. Alaska Constructors, Inc. , 957 P.2d 957, 960 (Alaska 1998)41

(citingRose v. Commercial Fisheries Entry Commn , 647 P.2d 154, 161 (Alaska 1982)).

In an interlocutory decision in the case, the board noted that the chair of the42

pre-hearing conference did not want to grant a continuance because the case had been

languishing for several years (though not necessarily through the fault of the

employer) . . . .

Cf. State, Dept of Natural Res. v. Greenpeace, 96 P.3d 1056, 1066 (Alaska43

2004).

The board chair said to AT&Ts attorney, [I]f you want to leave the record44

open Im certainly open to doing that. He also asked if AT&T wanted to leave the

(continued...)

6139-25-

prepared for the hearing, evidence was obtained by the

opposing party after the request for hearing was filed which

is or will be offered at the hearing, and due process required

the party requesting the hearing be given an opportunity to

obtain rebuttal evidence;

. . .

(L) the board determines that despite a partys due

diligence, irreparable harm may result from a failure to grant

the requested continuance or cancel the hearing.

The scope of review for an agencys application of its own regulations to

the facts is limited to whether the agencys decision was arbitrary, unreasonable, or an

abuse of discretion. The board did not abuse its discretion in failing to grant AT&Ts41

request for a continuance. The board appears to have balanced its desire to go forward

with the hearing in the case, which had been pending for quite some time, with AT&Ts42

due process rights when it: (1) offered to leave the record open so that AT&T could rebut

Dr. Keenes report or cross-examine Dr. Keene at deposition; (2) afforded AT&T the43

opportunity to cross-examine Dr. May at the hearing albeit on AT&Ts own time; and

(3) offered to leave the record open at the close of the hearing. AT&T waived cross-44


26/29

(...continued)44

record open for cross-examination after he said that he would not leave the record open

for a follow-up EME.

Schweiker v. McClure, 456 U.S. 188, 195 (1982);Amerada Hess Pipeline45

Corp. v. Alaska Pub. Utils. Commn, 711 P.2d 1170, 1180 (Alaska 1986).

AS 44.62.010.950.46

Bruner v. Peterson , 944 P.2d 43, 49 (Alaska 1997) (citingEarth Res. Co.47

v. State, 665 P.2d 960, 962 n.1 (Alaska 1983)).

6139-26-

examination of Drs. Keene and May and did not object to the boards closing the record

at the end of the hearing. Because the board offered AT&T some opportunity to present

evidence after the hearing in lieu of granting a continuance, we cannot say that the board

abused its discretion here.

4. AT&Ts right to an impartial tribunal

Due process gives a party the right to have an impartial tribunal hear the

partys case. AT&T contends that the hearing officer in this case was biased because45

he had been elected to an officer position in the Alaska Chapter of the AFL-CIO the

summer before the hearing. It argues that AS 23.30.005(a) and (e) require that a

workers compensation hearing panel be balanced, and that the panel here did not meetthis requirement. It also asserts that the hearing officer should have disqualified himself

under AS 44.62.450(c), one of the provisions of the Alaska Administrative Procedure

Act. Finally, it contends that the hearing officers conduct violated the Alaska Code46

of Judicial Conduct.

a. Actual bias or prejudgment

Administrative agency personnel are presumed to be honest and impartial

until a party shows actual bias or prejudgment. To show hearing officer bias, a party47

must show that the hearing officer had a predisposition to find against a party or that the


27/29

Tachick Freight Lines v. Dept of Labor, 773 P.2d 451, 453 (Alaska 1989)48

(citingIn re Cornelius, 520 P.2d 76, 83 (Alaska 1974)).

Former AS 23.30.005(a). The statute was amended in 2005 to say, Each

49

panel must include the commissioner of labor and workforce development or a hearing

officer designated to represent the commissioner, a representative of industry, and a

representative of labor . . . . The 2005 amendments also authorize the board to provide

procedures to avoid conflicts and the appearance of impropriety in hearings. AS

23.30.005(a).

6139-27-

hearing officer interfered with the orderly presentation of the evidence. We conclude48

that the hearing officers position as an AFL-CIO vice president is insufficient to show

actual or probable bias on its own. Although the chair ruled against AT&T on some

procedural questions, that alone is not sufficient to show a predisposition to find against

AT&T. AT&T has made no showing that the hearing officer prejudged any facts in this

case or was motivated by actual bias in ruling on procedural issues.

b. Workers compensation statute

AT&T alleges that the hearing panel violated the statutory requirement of

a balanced hearing panel because the chairs union activities upset the balance in the

panels composition. The workers compensation act provides for panels of threemembers: a representative of labor, a representative of industry, and the commissioner

of labor or the designated representative of the commissioner. The applicable statute49

does not say that the panel must be neutral, nor does it restrict in any way whom the

commissioner can appoint as his representative. There is no indication that the chair (the

commissioners designee) was acting as a second representative of labor or in a non-

neutral capacity. We are unconvinced that his ancillary union position unbalanced the

panel.

c. The Alaska Code of Judicial Conduct


28/29

Louisiana Pac. Corp. v. Koons, 816 P.2d 1379, 1382-83 (1979).50

Adamson, 819 P.2d at 889 n.3. We note that new regulations governing51

hearing officer conduct look to the Code of Judicial Conduct for guidance, although they

do not explicitly apply the code to hearing officers. 2 AAC 64.030(c) (2006). No one

argues that these regulations apply here, and we express no opinion as to the applicabilityof the Code of Judicial Conduct to hearing officers in future cases.

Id.; AS 44.62.450(c).52

Alaska Code of Judicial Conduct Canon 4C(3)(a) (2006).53

6139-28-

AT&T argues at length that the hearing officer violated the Alaska Code of

Judicial Conduct but does not address the threshold issue of the codes applicability to

workers compensation hearing officers. It relies on one 1988 board ethics bulletin that

looked to the Code of Judicial Conduct for guidance on the issue of giving references.

Louisiana Pacific Corp. v. Koons , cited by AT&T to support its argument, deals with a

hearing officers ex parte communications, which are explicitly prohibited by the Alaska

Administrative Procedure Act, and says nothing about the Code of Judicial Conduct.50

Because AT&T has not adequately briefed the issue of the applicability of the Code of

Judicial Conduct to workers compensation hearing officers, we will not consider it.51

Nor will we consider any claim that the hearing officers conduct violated theAdministrative Procedure Acts provision regarding disqualification of hearing officers.52

We do not believe that the hearing officers position as a union officer

violated the code in any event. While the Code of Judicial Conduct prohibits judges

from serving as officers of organizations that are likely to be engaged in proceedings that

come before the judge, unions are not generally parties before the workers53

compensation board, even though their individual members may come before the board.

Hearing officers in the workers compensation division are members of the Alaska State

Employees Association, which is affiliated with the AFL-CIO. Because the hearing


29/29

officers position as a union officer seems to have arisen directly out of his employment

for the state, AT&Ts argument could potentially disqualify all hearing officers.

IV. CONCLUSION

The board did not abuse its discretion in its procedural rulings; it therefore

did not deny AT&T due process. Because substantial evidence exists in the record to

support the boards findings, we AFFIRM the superior court judgment that affirmed the

boards rulings.

att alascom v orchitt s-12058 alaska supreme court opinion

Documents